BALLB- WHY CONSTITUTION IS CALLED THE FUNDAMENTAL LAW OF THE LAND?

  The word constitution has been derived from the term  ‘Constitutio’ which means to establish. This term has been defined by different jurists as no single definition can cover it all.

As according to Thomas Paine “A constitution is not the act of government, but of the people constituting a government, and a government without a constitution is power without right….. A constitution is a thing antecedent to the government, and a government is only the creature of a constitution.

A.V. Diecy has defined it as “Constitution is the set of rules which governs the government”

Lord Bryce “Constitution is the aggregate of laws and customs under which the life of the state goes on”

Constitution as a fundamental law of the land

The constitution is the fundamental law of the land because it sets the parameters to determine which law is valid and which one is not. It is also known as the highest and supreme law of the land as Supreme law indicates a law that has a higher legal status than other laws. Where there is supremacy of the constitution, a parliament must only pass laws that comply with the constitution. It determines how political power is organized or exercised. The constitution is the fundamental law of a country which creates a system of government and provides validity to all other laws. It is the basic framework of the government. No law that is passed by the federal or state government contravenes the rights, privileges and processes described in the constitution. It also determines the composition and functions of the state organs and regulates the relationship between the individual (citizen) and the state. The fundamental law is the foundation of our society. Through this document, our fundamental rights are secured and protected against infringement by the government. In a country that is based on the rule of law is found in their constitution. The fundamental law is intimately connected with fundamental rights because the ultimate purpose of that law is to protect and defend the fundamental rights of sovereign individuals. Sovereignty itself is the subject of law. No legislature can make a law and no government act contrary to the Constitution. No act of executive, legislature, judicial or quasi-judicial of any administrative agency can stand if contrary to the constitution.

According to the Blacks Law Dictionary, supreme law is the law which determines the constitution of the government in a nation or state and prescribes and regulates the manners it exercises. The organic law of the nation.

Status of the Constitution as a fundamental law of the land in various countries  So many countries recognise the principle of the constitution as a fundamental law of the land.

USA

The constitution of the United States is a contract of powers delegated to the federal government by 50 states, to perform services which are difficult and impossible for individual states. The constitution as the fundamental law of the land was first time recognised by the US Supreme Court in the case of Marbury V. Madison in 1803

UK

The UK developed a parliamentary system of government as well as the rule of law but it has no written constitution. It has parliamentary supremacy. Parliament has the sole power to make laws and can be amended easily in a simple majority.

Nepal

Nepal has also adopted this theory literally. Nepal has a written constitution known as the supreme law of the land. The source of the constitution is the people. The legislature is only a representative body under the constitution. The source of authority of all organs of Nepal including the legislature is the constitution, which created them. We followed the parliamentary system of government as well as the rule of law. The Constitution has the sole power to control.

     Similarly in the case of Iman Singh Gurung vs Royal Nepali Military Court, Man Bahadur Bishwakarma vs HMG; Secretariat of Ministry of Council et al., and in several other cases, the Supreme Court gave its verdict establishing that the constitution is the fundamental law of the land.

 

Constitutional provisions

Article -1. Constitution as the fundamental law: (1)This Constitution is the fundamental law of Nepal. Any law inconsistent with this Constitution shall, to the extent of such inconsistency, be void.

 Article-133. Jurisdiction of Supreme Court: Any citizen of Nepal may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this constitution or…..

… or any law formulated by the provincial Assembly is inconsistent with the law formulated by the Federal Parliament.

…or any law formulated by the Municipal Assembly or Village Assembly is inconsistent with the law formulated by Federal Parliament or provincial Assembly,

and the Supreme Court shall have an extraordinary power to declare that law to be void either ab initio or from the date of its decision if the law appears to be so inconsistent.

    Hence, the Constitution can be defined as the fundamental law of the Land.